I move: "That the Bill be now read a Second Time".
The purpose of the Bill is to give the force of law in the State to two international Conventions: the Hague Convention on the Civil Aspects of International Child Abduction; and the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children. Both conventions have already been signed, subject to ratification, on behalf of Ireland. During the course of my speech I will refer to the conventions as the Hague Convention and the Luxembourg Convention, respectively.
The background to the conventions is that child snatching by parents, or "tug of love" cases as they are called, is a growing international problem. This is inevitable in the wake of increasing levels of family breakdown in states, of growing mobility of individuals between states and of easier international travel. The importance of the conventions is that they are designed to facilitate the speedy return of children who are abducted to any contracting state, usually by a parent. The conventions deal exclusively with the civil aspects of international child abduction. While the conventions, in tackling the problem of international child abduction, have common aims and features, they are distinctly different in certain respects in their approach. Both conventions apply to children under 16 years of age and they are based on the premise that where the custody of a child is in issue in court proceedings, the child's welfare is of paramount importance. The conventions deal with the practical and legal problems involved in child snatching by the establishment in each contracting state of a central authority to facilitate the operation of the conventions. The Luxembourg Convention has a scheme of recognition and enforcement under which custody orders of one state are recognised and enforced in other contracting states. In the case of the Hague Convention there are expeditious procedures for the return of the child which, unlike the Luxembourg Convention procedures, can operate in the absence of a court order in the state from which the child was removed.
In becoming a party to the arrangements set out in the two conventions we will be ensuring that as between Ireland and other contracting states there will be a major improvement in the protection afforded to the victims, both children and parents, in child abduction cases. At present, we have no legislation specifically aimed at the matter.
The conventions came into force in 1983 having been ratified in each case by a minimum of three states. The number of contracting states has increased to 16 in the case of the Hague Convention and to 13 in the case of the Luxembourg Convention. The Hague and Luxembourg Conventions have been ratified by seven and eight EC states, respectively, and it is expected that all EC states will have ratified both conventions by 1992.
Deputies may query the relationship between the two conventions and the UN Convention on the Rights of the Child which was signed by the Taoiseach on the occasion of his visit to New York for the Summit on the Child in September last. So far as child abduction is concerned, the position is that the UN Convention requires states to combat the problem by acceding to existing international agreements on the matter. The Bill will enable Ireland to comply with that requirement in the UN Convention.
I should also like to point out that the Bill takes into account the recommendations of the Law Reform Commission in its report (LRC 12-1985) on the Hague Convention and some related matters and I wish to express my appreciation for the work done by the commission in this area.
I have circulated an explanatory memorandum with the text of the Bill. The memorandum deals with the provisions in the Bill as well as the conventions. Having regard to the technical nature of a number of the provisions in the Bill and the conventions, I believe that this explanatory memorandum will prove particularly useful.
The main provisions in the Bill are section 6 in Part II concerning the Hague Convention and section 21 in Part III concerning the Luxembourg Convention which provide that the conventions shall have the force of law in the State. The conventions are drawn up in the English and French languages, each of those languages being equally authentic. The English language texts of the conventions are scheduled to the Bill for ease of reference.
Certain provisions are common to Parts II and III of the Bill. The most important relate to the setting up and operation of a central authority in this country for the purposes of both conventions, and the jurisdiction of the High Court. Briefly, these provisions are as follows. Sections 8 and 22 provide for the establishment of a central authority in the State to facilitate the operation of the conventions. The Minister for Justice, through his Department, will act as the central authority for the purposes of each convention. As regards a child who has been removed to the State, the more important functions of the central authority under both conventions will be to initiate steps to trace the child; to seek the child's return or secure access to the child; and to arrange, if necessary, for court proceedings to secure the return of, or access to, the child. Where the child has been abducted from the State, the central authority will assist the wronged parent in seeking the return of his or her child by making contact with the central authority in the other contracting state and by collating and sending to that authority any information that is required, including welfare reports, about the child. Sections 14 and 30, accordingly, give the central authority for the purposes of the conventions to request a probation and welfare officer, a health board or a court to provide information on the background of a child for transmission to a central authority in another contracting state for use in court proceedings in that state.
Sections 9 and 24 deal with incoming applications, i.e. applications under the conventions to our central authority for the return of a child who has been abducted to Ireland. Both sections make clear that the central authority shall take or cause the appropriate action to be taken under the relevant convention. In this connection the central authority may, for example, have to trace the child in which event it will normally contact the Garda Síochána who will put the necessary procedures into effect. Where court proceedings are concerned the application will be transmitted by the central authority to the Legal Aid Board for attention since applicants will be entitled to legal aid under both conventions. Sections 10 and 32 deal with outgoing applications, i.e. applications under the conventions for the return of a child who has been abducted from the State. In these cases our central authority will assist applicants by transmitting applications and any documentation that is required to the central authority in the contracting state to which the child has been removed.
Sections 7 and 23 are also similar in that they give the High Court jurisdiction to hear and determine applications under the conventions. Sections 12 and 26 provide interim powers to the High Court for securing the welfare of a child prior to the determination of an application under either convention.
I should like to mention also that both conventions oblige the central authority to keep an applicant informed about the progress of his or her application. These are useful provisions which aim to reduce as far as possible the anxiety of a wronged parent.
I now turn to the Hague Convention and Part III of the Bill. The objects of the convention are set out in Article 1 — the convention aims to secure the prompt return of children wrongfully removed to or retained in any contracting state and to ensure that rights of custody and of access under the law of one contracting state are effectively respected in other contracting states. A removal or retention of a child is wrongful under Article 2 of the convention where it is in breach of rights of custody of a person under the law of the state in which the child was habitually resident immediately before the removal or retention.
Where wrongful removal to, or retention, of a child in Ireland occurs, our High Court must order the return of the child under Article 12 of the convention unless certain grounds for refusal are made out by the respondent. Where the application for the return of a child is made after the passage of one year from the date of removal or retention, return may be refused by the High Court by virtue of Article 12 if it is demonstrated that the child is settled in its new environment. Whether the application for return of the child is made within one year from the date of removal or retention, return may be refused by the High Court on grounds contained in Articles 13 and 20 of the convention. The grounds in Article 13 are (a) that the applicant was not actually exercising custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention of the child by the respondent; (b) that there is a grave risk that the child's return would expose him to physical or psychological harm or otherwise place the child in an intolerable position; or (c) where the child objects to being returned and has attained an age and a degree of maturity at which it is appropriate to take account of his views.
Under Article 20 the return of a child may also be refused if it would be contrary to the fundamental principles of the State relating to the protection of human rights and fundamental freedoms. This article is of particular importance in the Irish context in view of our constitutional requirements relating to the protection of human rights.
Another matter in connection with the Hague Convention which I want to mention is section 13. The effect of that section, as required by Article 16 of the convention, is that any custody proceedings which are before any court in the State when proceedings under the Hague Convention are commenced in the High Court must be stayed until it has been determined that the child is not to be returned under the convention or unless there is delay in bringing the application for return of the child before the High Court.
I now deal with the Luxembourg Convention and Part III of the Bill. The scope of the convention is indicated in Article 4 which provides that a person who has obtained in a contracting state a decision relating to the custody of a child and who wishes to have that decision recognised or enforced in another contracting state may submit an application for this purpose to the central authority in another contracting state. As mentioned earlier, the High Court will have jurisdiction to hear and determine such applications in this country. Subject to certain safeguards which generally have regard to what is best for the child, the High Court will be empowered to make an order of recognition and enforcement of the foreign custody decision as if it were an order of the High Court. There are no such arrangements at present under which a foreign custody order will be recognised or enforced in the State.
The Luxembourg Convention, as in the case of the Hague Convention, provides grounds for refusal of applications. In order to invoke certain of those grounds, contracting states must enter reservations under Article 17 of the convention.
It is proposed that Ireland should enter such reservations as have many other contracting states. The various grounds of refusal of recognition or enforcement of a custody decision are contained in article 10 and these are dealt with in some detail in the explanatory memorandum which accompanies the Bill.
Section 28 (1) of the Bill provides that the High Court may refuse an application under the Luxembourg Convention on any of the grounds in question. In effect, these are that the child was both an Irish national and habitually resident in Ireland; that he was either an Irish national or habitually resident in Ireland and had no such connection with the state in which the decision was given; that the effects of the decision are manifestly incompatible with the fundamental principles of the law relating to the family and children in the State, that by reason of a change in the circumstances including the passage of time, but not including a mere change in the residence of the child after an improper removal, the effects of the original decision are manifestly no longer in accordance with the welfare of the child; or if the decision in the state of origin is incompatible with a decision of a court in the state or enforceable in the state and refusal would be in accordance with the welfare of the child.
Provisions of some procedural importance are contained in sections 27 and 28 (2). Section 27 takes into account Article 10.2 (b) of the Luxembourg Convention and concerns the case where an application is made to the High Court under the convention while an application relating to custody of the same child is pending before any court in the State. The section provides that, where the custody proceedings before any court in the State were commenced before the foreign custody proceedings were commenced in the state of origin, the proceedings in the High Court in respect of the foreign custody decision may be suspended until the other custody proceedings have been determined. Conversely, the section also provides that the foreign custody proceedings in the High Court will have the effect of suspending the powers of any court in the State in any custody proceedings which commenced after the commencement of the proceedings in the state of origin.
Section 28 (2) avoids possible conflict between applications to the High Court made under both conventions in respect of the same child. The section makes clear that where an application for recognition or enforcement is sought in the High Court under the Luxembourg Convention and proceedings in the High Court under the Hague Convention are pending, the Luxembourg Convention proceedings shall be stayed until the other proceedings have been determined.
This concludes my comments on the main features of the two conventions and Parts II and III of the Bill.
Part IV of the Bill contains supplementary provisions and I should like to comment on two of those provisions, namely, sections 36 and 37, which should be of considerable practical value.
Section 36 provides that the High Court may, in proceedings in the High Court under either convention, where there is not available to it adequate information as to the whereabouts of the child, order any person who it has reason to believe may have relevant information, to disclose it to the court. In cases where the child has been produced, the court may also order disclosure of any information that is relevant to proceedings under either convention. The court will have similar powers in cases where the child has been abducted out of the State and application is made to the court for information that may be necessary for any proceedings in another contracting state.
Under section 37 the Garda Síochána will have power to detain a child who, they reasonably suspect, is being removed from the State in breach of any custody order, including orders made under either convention, or while proceedings in relation to custody orders are pending or are about to be made. In addition, the section makes detailed provision about what must be done where the child is detained. The Garda Síochána must return the child to the person who has rights of custody or return the child to a health board where the child has been in the care of that health board. There may also be circumstances where a child will have to be delivered into the care of a health board — for example where the parent is not available to take immediate delivery of the child — and that is also provided for in section 37. In such cases the Garda Síochána will be required to inform a parent of the child, or in appropriate cases the central authority, of any such delivery of the child to a health board, and the health board will be required to make application at the next sitting of the District Court in the district court district where the child resides or was at a material time residing for directions as the child's release from such care or otherwise. These are the main provisions of the Bill and the Conventions.
The Law Reform Commission in their report on the Hague Convention considered that an offence of abduction of a child should be created. Nevertheless, I am satisfied that the existing law on kidnapping and on contempt of court, together with the provision in section 37 of the Bill giving extra powers to the gardaí to detain a child who is being abducted, will adequately cover the matter. The provisions in the conventions for return of a child should, in addition, act as a deterrent to a would-be abducting parent. Deputies will agree that the important thing is to secure the return of the child and the Bill provides the necessary measures in that regard. I am concerned that any such new offence might in fact be counter-productive. The criminal sanction involved may, to use the words of the Law Reform Commission, "put an unnecessary barrier in the way of a parent ... who is later minded to return [the child]," and the sanction may indeed remove any possibility of reconciliation between the parents. In conclusion on this point, I am not convinced at this stage of the need to impose any new criminal sanction in what are essentially family disputes concerning children.
The Bill is, in essence, a measure aimed at safeguarding the welfare of children who are the subject of parental disputes. We all recognise the heartbreak that can result from the breakdown of marriage, particularly the effects on the children. One of our priorities therefore must be to ensure that the welfare of children affected by marriage breakdown is protected as far as it is humanly possible to do so. This Bill will be an important addition to our laws providing for the protection of children and for that reason I hope it will have a speedy passage through the Oireachtas thus ensuring early ratification of the Hague and Luxembourg Conventions.
I commend the Bill to the House.